The Supreme Court of Appeal yesterday dismissed an appeal by British American Tobacco (BAT) SA and found the ban on tobacco advertising reasonable and justifiable.
The judgment puts to rest any hope the tobacco industry had of advertising its products, unless it approaches the Constitutional Court, and it strengthens the hands of those Cabinet ministers seeking to ban the advertising of alcohol.
BAT had challenged - and lost in the North Gauteng High Court - section 3(1)(a) of the Tobacco Products Amendment Act of 2008, which states that no person may advertise or promote a tobacco product through any means. It argued that the ban limited its right to freedom of expression.
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The company had wanted one-on-one communication with "consenting adult consumers of tobacco products" on packaging changes, brand migrations, product development and new product launches.
In a unanimous judgment, with which four other judges concurred, Supreme Court of Appeal Deputy President Kenneth Mthiyane ruled that the right to commercial speech in the context of this case was important but not absolute.
"When it is weighed up against the public health considerations that must necessarily have been considered when imposing the ban on advertising and promotion of tobacco products, it must, I think, give way. The seriousness of the hazards of smoking far outweigh the interests of the smokers as a group," Judge Mthiyane said.
Luche Joubert, senior counsel for BAT, said no decision had been taken yet about whether the company would take the matter to the Constitutional Court.
"Obviously we are disappointed by the result, but we will sit down and study the judg ment to see whether the issues we believe to be relevant are worth pursuing further," Mr Joubert said yesterday.
Free Market Foundation executive director Leon Louw, who earlier this week criticised the tightening of smoking regulations, said the Appeal Court ruling was "ominous". Emphasising that he was speaking in his personal capacity, Mr Louw said yesterday: "Next we will have prohibitions on marketing junk food and adventure sports, or anything that the government deems unhealthy for its citizens - which could be anything.
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